Wamai v. Indus. Bank of Korea ( 2023 )

21-1956-cv
Wamai v. Indus. Bank of Korea
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
8th day of March, two thousand twenty-three.
PRESENT: PIERRE N. LEVAL,
DENNY CHIN,
JOSEPH F. BIANCO,
Circuit Judges.
Winifred Wairimu Wamai, individually and on behalf of
the Estate of Adam Titus Wamai, Titus Wamai, Diana
Williams, Lloyd Wamai, Angela Wamai, Velma Bonyo,
Individually and on behalf of the Estate of Wycliffe
Ochieng Bonyo, Dorine Bonyo, Elijah Bonyo Ochieng,
Angela Bonyo, Winnie Bonyo, Boniface Chege,
Caroline Wanjiru Gichuru, Lucy Gitau, Individually and
on behalf of the Estate of Lawrence Ambrose Gitau,
Catherine Waithera Gitau, Ernest Gitau, Felister Gitau,
Catherine Gitumbu Kamau, Individually and on behalf
of the Estate of Joel Gitumbu Kamau, David Kamau,
Peter Kamau, Phillip Kamau, Henry Bathazar Kessy,
Frederick Kibodya, Flavia Kiyanga, Lucy Kiongo,
Individually and on behalf of the Estates of Joseph
Kamau Kiongo and Teresia Wairimu Kamau, Alice
Kiongo, Jane Kamau, Newton Kamau, Peter Kamau
Kiongo, Pauline Kamau, Hannah Wambui, Pauline
Kamau Kiongo, Mercy Wairumu Kamau, Daniel Kiongo
Kamau, Raphael Kivindyo, Milka Wangari Macharia,
Samuel Pussy, Individually and on behalf of the Estate
of Rachael Mungasia Pussy, Doreen Pussy, Elsie Pussy,
Andrew Pussy, Michael Ngigi Mworia, John Nduati,
Aaron Makau Ndivo, Joyce Mutheu, Priscila Okatch,
Individually and on behalf of the Estate of Maurice
Okatch Ogalla, Jackline Achieng, Rosemary Anyango
Okatch, Samson Ogolla Okatch, Dennis Okatch, Pauline
Abdallah, Belinda Akinyi Adikanyo, Faith Kihato,
Individually and on behalf of the Estate of Tony Kihato
Irungu, Jacqueline Kihato, Steve Kihato, Annah
Wangechi, Betty Kagai, Elsie Kagimbi, Josinda
Katumba Kamau, Individually and on behalf of the
Estate of Vincent Kamau Nyoike, Caroline Wanjuri
Kamau, Faith Wanza Kamau, David Kiarie Kiburu,
Grace Kimata, Individually and on behalf of the Estate
of Francis Watoro Maina, Victor Watoro, Lydia Muriki
Mayaka, Individually and on behalf of the Estate of
Rachel Wambui Watoro, Nyangoro Mayaka, Doreen
Mayaka, Dick Obworo Mayaka, Diana Nyangara, Debra
Mayaka, George Magak Mimba, Tibruss Minja, Edward
Mwae Muthama, Nicholas Mutiso, Sarah Tikolo,
Individually and on behalf of the Estate of Geoffrey
Moses Namai, Nigeel Namai, Charles Mwangi Ndibui,
Julius Nzivo, Rosemary Olewe, Individually and on
behalf of the Estate of Francis Olewe Ochilo, Juliet
Olewe, Wendy Olewe, Patrick Okech, Mordechai
Thomas Onono, Individually and on behalf of the Estate
of Lucy Grace Onono, John Muriuki, Evitta Francis
Kwimbere, Mary Ofisi, Joyce Onyango, Individually
and on behalf of the Estate of Eric Abur Onyango, Tilda
Abur, Barnabas Onyango, Kelesendhia Apondi
Onyango, Paul Onyango, Kaka Abubakar Iddi, Charles
Mwaka Mulwa, Victor Mpoto, Julius Ogoro, Mary
Ndambuki, Individually and on behalf of the Estate of
Kimeu Nzioka Nganga, Wellington Oluoma, Jacinta
Wahome, Stella Mbugua, Sajjad Gulamaji, Mary
Gitonga, Francis Maina Ndibui, Kirumba W'mburu
Mukuria, Christant Hiza, Marini Karima, Zephania
Mboge, Emily Minayo, Joash Okindo, Rukia Wanjiru
Ali, Bernard Mutunga Kaswii, Hosiana Mbaga,
Margaret Waithira Ndungo, Samuel Odhiambo Oriaro,
Gaudens Thomas Kunambi, Livingstone Busera
Madahana, Menelik Kwamia Makonnen, Tobias Oyanda
Otieno, Charles Mwirigi Nkanatha, Justina Mdobilu,
Gideon Maritim, Belinda Chaka, Clifford Tarimo, James
Ndeda, Milly Mikali Amduso, Moses Kinyua, Valerie
Nair, Aisha Kambenga, Individually and on behalf of the
Estate of Bakari Nyumbu, Jane Kathuka, Individually
2
and on behalf of the Estate of Geoffrey Kalio, Bernice
Ndeti, Dawn Mulu, Tabitha Kalio, Aquilas Kalio,
Catherine Kalio, Lilian Kalio, Hussein Ramadhani,
Individually and on behalf of the Estate of Ramadhani
Mahundi, Charles Mungoma Olambo, Caroline Okech,
Enos Nzalwa, Ali Hussein Ali, Individually and on
behalf of the Estate of Hindu Omari Idi, Omar Idi,
Hamida Idi, Mahamud Omari Idi, Rashid Omar Idi,
Fatuma Omar, Kamali Musyoka Kithuva, Individually
and on behalf of the Estate of Dominic Musyoka
Kithuva, Beatrice Martha Kithuva, Titus Kyalo
Musyoka, Benson Malusi Musyoka, Caroline Kasungo
Mgali, Monica Wangari Munyori, Nuri Hamisi Sultani,
Individually and on behalf of the Estate of Mohamed
Abdallah Mnyolya, Nafisa Malik, Grace Makasi Paul,
Individually and on behalf of the Estate of Eliya Elisha
Paul, Blasio Kubai, Elizabeth Maloba, Individually and
on behalf of the Estate of Frederick Maloba, Margaret
Maloba, Lewis Maloba, Marlon Maloba, Sharon
Maloba, Kenneth Maloba, Edwina Owuor, Individually
and on behalf of the Estate of Josiah Owuor, Vincent
Owuor, Warren Owuor, Grace Gicho, Individually and
on behalf of the Estate of Peter Macharia, Diana
Macharia, Ngugi Macharia, Margaret Njoki Ngugi, John
Ngugi, Ann Ruguru, David Ngugi, Paul Ngugi, Stanley
Ngugi, Lucy Chege, Margaret Gitau, Susan Gitau, Peris
Gitumbu, Stacy Waithere, Monicah Kamau, Joan
Kamau, Margaret Nzomo, Barbara Muli, Stephen Muli,
Lydia Ndivo Makau, Sarah Mbogo, Individually and on
behalf of the Estate of Francis Mbogo Njung'e, Misheck
Mbogo, Isaac Kariuki Mbogo, Reuben Nyaga Mbogo,
Nancy Mbogo, Ephantus Njagi Mbogo, Stephen Njuki
Mbogo, Ann Mbogo, Nephat Kimathi Mbogo, Daniel
Owiti Oloo, Magdaline Owiti, Benson Bwaku, Beatrice
Bwaku, Jotham Godia, Grace Godia, Hannah Ngenda
Kamau, Duncan Nyoike Kamau, Christine Mikali
Kamau, Ruth Nduta Kamau, Mercy Wanjiru, Stanley
Nyoike, Jennifer Njeri, Anthony Njoroge, Simon Ngugi,
Michael Ikonye Kiarie, Jane Ikonye Kiarie, Sammy
Ndungu Kiarie, Elizabeth Kiato, Charity Kiato, Judy
Kiarie, Nancy Mimba Magak, Raphael Peter Munguti,
Mary Munguti, Angela Mwongeli Mutiso, Benson
Ndegwa, Phoeba Ndegwa, Margaret Mwangi Ndibui,
Caroline Ngugi Kamau, Charles Olewe, Phelister Okech,
Estate of Phaedra Vrontamitis, Leonidas Vrontamitis,
Alexander Vrontamitis, Paul Vrontamitis, Anastasia
3
Gianpoulos, John Ofisi, Katherine Mwaka, Eucabeth
Gwaro, Trusha Patel, Pankaj Patel, Mary Mudeche,
Michael Ware, Sammy Mwangi, Lucy Mwangi, Joseph
Wahome, Solomon Mbugua, Japeth Godia, Merab
Godia, Winfred Maina, Jomo Matiko Boke, Selina Boke,
Humphrey Kiburu, Jennifer Wambai, Harrison Kimani,
Grace Kimani, Elizabeth Muli-Kibue, Hudson Chore,
Lydia Nyaboka Otao Okindo, Stanley Kinyua Macharia,
Nancy Macharia, Betty Oriaro, Rachel Oyanda Otieno,
Hilario Ambrose Fernandes, Catherine Mwangi, Doreen
Oport, Philemon Oport, Gerald Bochart, Yvonne
Bochart, Leilani Bower, Muraba Chaka, Roselyn Ndeda,
James Mukabi, Florence Omori, Individually and on
behalf of the Estate of Edwin Omori, Bryan Omori, Jerry
Omori, Janathan Okech, Mary Muthoni Ndungu,
Individually and on behalf of the Estate of Francis
Ndungu Mbugua, Samuel Mbugua Ndungu, Jamleck
Gitau Ndungu, John Muiru Ndungu, Edith Njeri,
Annastaciah Lucy Boulden, Agnes Wanjiku Ndungu,
Faith Maloba, Derrick Maloba, Steven Maloba, Charles
Ochola, Rael Ochola, Juliana Onyango, Marita
Onyango, Mary Onsongo, Individually and on behalf of
the Estate of Evans Onsongo, Enoch Onsongo, Peris
Onsongo, Venice Onsongo, Salome Onsongo, Bernard
Onsongo, George Onsongo, Edwin Onsongo, Gladys
Onsongo, Pinina Onsongo, Irene Kung’u, Belinda
Maloba,
Plaintiffs-Appellants,
v. 21-1956-cv
Industrial Bank of Korea,
Defendant-Appellee.
FOR PLAINTIFFS-APPELLANTS: JEFFREY A. TRAVERS (Michael J. Miller;
Steven R. Perles, Perles Law Firm, PC,
Washington, DC; Steven W. Pelak,
Michael O’Leary, Holland & Hart, LLP,
Washington, DC, on the brief), The
Miller Firm, LLC, Orange, VA.
4
FOR DEFENDANT-APPELLEE: JOSEPH R. PALMORE (Carl H. Loewenson,
Jr., J. Alexander Lawrence, Lena H.
Hughes, Morrison & Foerster LLP, New
York, NY, on the brief), Morrison &
Foerster LLP, Washington, DC.
Appeal from the judgment of the United States District Court for the Southern District of
New York (Cote, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiffs-appellants appeal from the district court’s judgment, entered on July 30, 2021,
conditionally dismissing their complaint for forum non conveniens. The 323 plaintiffs in this
lawsuit are victims, or the representatives of the estates of victims, of the simultaneous terrorist
attacks, on August 7, 1998, against the United States embassies in Kenya and Tanzania by al
Qaeda. Plaintiffs sued the Islamic Republic of Iran (“Iran”) for providing material support to al
Qaeda in the terrorist attacks and obtained default judgments against Iran in the United States
District Court for the District of Columbia, totaling $5.5 billion in compensatory and punitive
damages. Iran has not satisfied these judgments. Plaintiffs, as judgment creditors, filed this
lawsuit against defendant-appellee Industrial Bank of Korea (“IBK”), a bank that is headquartered
in the Republic of Korea (“Korea”) and is majority-owned by the Korean government. In their
complaint, plaintiffs principally alleged that IBK fraudulently funneled funds for Iran through
financial institutions in the Southern District of New York, including IBK’s New York branch,
and, in doing so, violated United States sanctions against Iran and deprived plaintiffs of their ability
to collect against their judgments. Specifically, plaintiffs sought the following: (1) rescission and
turnover of fraudulent conveyances made in violation of N.Y. D.C.L. § 273-a; (2) rescission and
turnover of fraudulent conveyances made in violation of N.Y. D.C.L. § 276; (3) turnover of Iranian
5
assets still held at IBK pursuant to C.P.L.R. § 5225; and (4) turnover of Iranian assets held by IBK
pursuant to the Terrorism Risk Insurance Act, 28 U.S.C. § 1610.
On July 14, 2021, the district court conditionally granted IBK’s motion to dismiss the
complaint on the ground of forum non conveniens. The district court determined that “plaintiffs’
choice of forum is entitled to minimal deference, IBK has shown that Korea is an adequate
alternative forum where this litigation may proceed, and relevant private and public interest factors
support dismissal.” Special App’x at 22. The district court made the dismissal conditional “in
order to protect the rights of the plaintiffs and to ensure that their claims may be heard on the
merits in Korea.” Id. at 23. Moreover, pursuant to the district court’s instruction, the parties filed
an agreement to litigate in Korea, which included a commitment by IBK to accept service in Korea
and waive any jurisdictional or statute of limitations defense. Following the filing of that
agreement, the district court entered judgment for IBK, and plaintiffs appealed. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal, to which we refer only as necessary to explain our decision to affirm.
DISCUSSION
“A district court’s decision to dismiss by reason of forum non conveniens is confided to
the sound discretion of the district court, to which substantial deference is given.” Pollux Holding
Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 70 (2d Cir. 2003) (citing Piper Aircraft Co. v. Reyno,
454 U.S. 235, 257 (1981)). “Such a decision may be overturned only when we believe that the
trial court has clearly abused its discretion.” Id. “Discretion is abused in the context of forum non
conveniens when a decision (1) rests either on an error of law or on a clearly erroneous finding of
fact, or (2) cannot be located within the range of permissible decisions, or (3) fails to consider all
the relevant factors or unreasonably balances those factors.” Id. (internal citation omitted). We
6
review statements of foreign law de novo. Animal Sci. Prod., Inc. v. Hebei Welcome Pharm. Co.,
138 S. Ct. 1865, 1873 (2018).
On appeal, plaintiffs argue that the district court misapplied the three-step forum non
conveniens test established in Iragorri v. United Technologies Corp., 274 F.3d 65 (2d Cir. 2001)
(en banc). In exercising its discretion under that test, the district court: (1) “determines the degree
of deference properly accorded the plaintiff’s choice of forum”; (2) “considers whether the
alternative forum proposed by the defendant[] is adequate to adjudicate the parties’ dispute”; and
(3) “balances the private and public interests implicated in the choice of forum.” Norex Petrol.
Ltd. v. Access Indus., Inc., 416 F.3d 146, 153 (2d Cir. 2005) (citing Iragorri, 274 F.3d at 73–74).
As set forth below, we conclude that the district court properly applied the requisite three-part test
in its thorough and well-reasoned opinion and acted within its discretion in concluding that the
lawsuit should be conditionally dismissed on the ground of forum non conveniens.
I. Plaintiffs’ Choice of Forum
Plaintiffs first argue that the district court’s decision to give “some, albeit minimal,
deference” to their choice of forum was an abuse of discretion. Special App’x at 15.
Generally, a plaintiff’s choice of forum “is entitled to substantial deference.” Pollux
Holding, 329 F.3d at 70. This is particularly true when plaintiffs choose their “home forum,”
which is entitled to “the greatest deference.” Norex, 416 F.3d at 154. As we have explained, the
“reason we give deference to a plaintiff’s choice of her home forum is because it is presumed to
be convenient.” Iragorri, 274 F.3d at 71 (citing Piper, 454 U.S. at 255–56). However, “the
plaintiff’s forum choice should not be given automatic dispositive weight in determining a forum
non conveniens motion.” Overseas Nat’l Airways, Inc. v. Cargolux Airlines Int’l., S.A., 712 F.2d
11, 14 (2d Cir. 1983). Instead, “the degree of deference to be given to a plaintiff’s choice of forum
moves on a sliding scale depending on several relevant considerations.” Iragorri, 274 F.3d at 71.
7
We have recognized that “[t]he more it appears that a domestic or foreign plaintiff’s choice of
forum has been dictated by reasons that the law recognizes as valid, the greater the deference that
will be given to the plaintiff’s forum choice.” Id. at 71–72. Factors weighing in favor of deference
“include the convenience of the plaintiff’s residence in relation to the chosen forum, the
availability of witnesses or evidence [in] the forum district, the defendant’s amenability to suit in
the forum district, the availability of appropriate legal assistance, and other reasons relating to
convenience or expense.” Id. at 72.
In this case, the district court did not abuse its discretion in determining that plaintiffs’
choice of forum was “entitled to minimal deference.” Special App’x at 12. In conducting its
analysis, the district court first observed that the U.S. resident plaintiffs are significantly
outnumbered by overseas plaintiffs (namely, 83% of the plaintiffs reside outside the United States)
and then concluded that because the vast majority of the plaintiffs are not resident in the United
States, “plaintiffs’ residence is therefore not convenient to the chosen forum.” 1 Id. The district
1
To the extent plaintiffs suggest that the presence of any U.S. residents among the plaintiffs precludes a
district court from giving less deference to the choice of forum even when the overwhelming majority of
the plaintiffs reside abroad, we find that argument unpersuasive. We have repeatedly affirmed district
courts’ application of less deference to the plaintiffs’ choice of forum in the forum non conveniens analysis
where the U.S. resident plaintiffs’ lawsuit are outnumbered by non-resident plaintiffs. See, e.g., Bahgat v.
Arab Republic of Egypt, 631 F. App’x 69, 70 (2d Cir. 2016) (summary order) (“Three of the [four] plaintiffs
currently reside in Egypt, and the selection of a U.S. forum by such plaintiffs is entitled to less deference.”);
Wilson v. Eckhaus, 349 F. App’x 649, 651 (2d Cir. 2009) (summary order) (“The district court appropriately
considered each plaintiff’s connection to the New York forum, reducing the overall deference accorded on
the ground that less than half of the plaintiffs are United States residents.”); Overseas Media, Inc. v.
Skvortsov, 277 F. App’x 92, 96–97 (2d Cir. 2008) (summary order) (holding no abuse of discretion in the
district court’s determination that plaintiffs’ choice of forum was entitled to less deference because two of
three plaintiffs were residing abroad). We also find unavailing plaintiffs’ related argument that the overseas
plaintiffs are entitled to great deference notwithstanding their non-U.S. residence because they are U.S.
government employees or family members of such employees, and more than 50 are U.S. citizens or
permanent residents. If a plaintiff resides in a foreign country, the fact that the plaintiff is a U.S. citizen
and/or a U.S. government employee does not automatically entitle the choice of forum in the United States
to great deference because, given the plaintiff’s residency abroad, it “would be less reasonable to assume
the choice of forum is based on convenience.” Iragorri, 274 F.3d at 73 n.5; see also U.S.O. Corp. v. Mizuho
Holding Co., 547 F.3d 749, 752 (7th Cir. 2008) (“Convenience . . . is not a euphemism for nationalism . . .
8
court also weighed other convenience factors in determining that Korea was a more convenient
forum, such as the locus of events underlying the lawsuit, the location of evidence, as well as
jurisdictional considerations. With respect to events, it observed that plaintiffs’ primary
allegations that IBK employees conspired to violate U.S. laws and fraudulently convey Iranian
funds arose out of conduct that allegedly occurred in Korea. As to the evidence, the district noted
that virtually all of the relevant documentary evidence and witnesses are in Korea. 2 Moreover,
although the district court acknowledged that certain potential witnesses may have been employed
by IBK’s branch in New York at the time the alleged events took place, it nonetheless found that,
on balance, if “this case proceeds in New York, then, discovery and trial would likely involve an
arduous process of securing the appearance of witnesses without the benefit of this Court’s
subpoena power and transporting witnesses and evidence to the United States.” Id. at 13. In
addition, the district court properly considered that it was “unclear whether IBK is amenable to
jurisdiction in New York in this case,” id., and that the potential litigation concerning personal and
subject matter jurisdiction “in and of itself weighs against deferring to the plaintiffs’ choice of
forum.” Id. at 13–14.
.”). In any event, as discussed infra, the residency factor was only one of many discretionary factors in this
case that the district court relied upon in attaching minimal deference to plaintiffs’ choice of forum.
2
Plaintiffs contend that the relevant documentary evidence is already possessed in the United States by
federal and New York State authorities because of IBK’s consent decree with the New York Department
of Financial Services, a non-prosecution agreement with the New York State Attorney General’s Office,
and a deferred prosecution agreement with the U.S. Attorney’s Office for the Southern District of New
York. Thus, plaintiffs argue that the district court erred in concluding that the documents possessed by
these government entities were “not readily available to the parties in this litigation.” Special App’x at 13.
However, we discern no error in that finding given that plaintiffs have neither sufficiently articulated how
the parties would be able to obtain access to that evidence, nor demonstrated that such evidence (if it were
obtained) would be co-extensive with the voluminous discovery that likely would be required in this case
given the broad nature of the allegations and claims.
9
Accordingly, on this record, we conclude that the district court acted well within its broad
discretion in ascribing minimal deference to plaintiffs’ choice in forum after carefully weighing
the relevant factors.
II. Adequacy of Alternative Forum
Plaintiffs also contend that the district court erred in finding that Korea is an adequate
alternative forum.
“An alternative forum is adequate if the defendants are amenable to service of process
there, and if it permits litigation of the subject matter of the dispute.” Pollux, 329 F.3d at 75 (citing
Piper, 454 U.S. at 254 n. 22). IBK bears the burden of establishing that an adequate alternative
forum exists. See Wiwa v. Royal Dutch Petrol. Co., 226 F.3d 88, 100 (2d Cir. 2000). The law of
an alternative forum need not be as favorable to a plaintiff as the plaintiff’s chosen forum in order
for the forum to be adequate. Piper, 454 U.S. at 250–52. A district court should find a forum
inadequate due to a difference in law only when the remedy available in the alternative forum is
“so clearly inadequate or unsatisfactory that it is no remedy at all.” Id. at 254. In making foreign
law determinations, district courts may “consider any relevant material or source, including
testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.”
Fed. R. Civ. P. 44.1.
Here, the district court conditioned its dismissal on IBK’s agreement to accept service in
Korea, to submit to the jurisdiction of the Korean courts, and to waive any statute of limitations
defenses that may have arisen since the filing of these actions. Shortly following dismissal of the
action, the district court endorsed a stipulation entered into by the parties pursuant to which IBK
agreed to litigate overseas in accordance with the conditions outlined by the district court.
Notwithstanding that stipulation between the parties, plaintiffs contend that the district court erred
10
in concluding that Korea “permits litigation of the subject matter of the dispute.” Norex, 416 F.3d
at 157 (internal quotation marks and citation omitted). Plaintiffs principally argue that IBK has
not established that the Korean courts would recognize plaintiffs’ underlying judgments against
Iran because Korean law does not recognize a terrorism exception to sovereign immunity, and,
thus, Iran would be entitled to sovereign immunity. 3 Plaintiffs assert that any conclusion reached
by IBK’s experts on whether such exception has been established is only speculative in light of a
split among the lower Korean courts on this issue.
The district court made no error of law in assessing Korea’s treatment of sovereign
immunity. The district court correctly evaluated the competing expert declarations and found that,
on balance, IBK’s experts convincingly demonstrated that Korean courts, like U.S. courts, are
likely to recognize an exception to sovereign immunity for acts of terrorism committed in violation
of international law. Indeed, the declarations of Professor Kwang Hyun Suk, IBK’s foreign law
expert, thoroughly addressed the split among Korean courts—in the context of distinct actions
brought against Japan by Korean victims of crimes against humanity committed by the Japanese
Empire during the Second World War—regarding whether exceptions to sovereign immunity
exist. Although acknowledging that the Korean Supreme Court will have to make a final
determination to resolve this split among the lower courts, Professor Suk nonetheless forcefully
argued that the high courts have taken a more progressive stance to limit sovereign immunity in
cases, like this one, that involve crimes against humanity. Joint App’x at 997–1001. Thus, we
3
Plaintiffs also argued that IBK had failed to establish that a Korean court would find that the United States
had “international jurisdiction” over the underlying judgments, such that they could be enforced in a Korean
court. We disagree. IBK’s experts showed that a high court would likely recognize international
jurisdiction either based on a theory of “substantial connection” or because of “the need to provide a remedy
to Plaintiffs who suffered harm from a special type of tort which involved terrorist attacks targeting the
embassies.” Joint App’x at 1002–05.
11
agree with the district court that “IBK’s [expert] analysis of whether Korean courts would
recognize the plaintiffs’ U.S. judgments is more convincing than that presented by the plaintiffs
and their experts.” Special App’x at 17. 4
In short, we conclude that the district court did not abuse its discretion in determining that
Korea is an adequate alternative forum for plaintiffs to pursue their claims.
III. Private and Public Interests
Finally, the district court did not abuse its discretion in finding that the private and public
interest factors favored dismissal. With respect to the private interest factors, courts “assess ‘the
relative ease of access to sources of proof; the availability of compulsory process for attendance
of unwilling, and the cost of obtaining attendance of willing, witnesses; the possibility of view of
premises, if view would be appropriate to the action; and all other practical problems that make
trial of a case easy, expeditious and inexpensive.’” Aenergy, S.A. v. Republic of Angola, 31 F.4th
119, 132–33 (2d Cir. 2022), cert. denied, No. 22-463, 2023 WL 124091 (U.S. Jan. 9, 2023),
(alteration adopted) (quoting Iragorri, 274 F.3d at 73–74). As to the public interest factors, courts
consider the “administrative difficulties associated with court congestion; the unfairness of
imposing jury duty on a community with no relation to the litigation; the interest in having
localized controversies decided at home; and avoiding difficult problems in conflict of laws and
the application of foreign law.” Id. at 133 (quoting Aguinda v. Texaco, Inc., 303 F.3d 470, 480
(2d Cir. 2002)).
4
In addition, the district court noted that “IBK’s experts have also pointed out that the conduct alleged by
the plaintiffs can potentially subject IBK to liability under several different Korean legal frameworks that
may not require recognition of the plaintiffs’ judgments in Korea,” including “Korean tort law and the
Korean law of a creditor’s right of revocation.” Special App’x at 17 n.7. However, the district court did
not assess the expert evidence regarding the availability of these additional remedies against IBK because
it determined that “IBK has demonstrated that Korean courts are likely to recognize the plaintiffs’ U.S.
judgments as valid.” Id.12
In determining that private interest factors weigh in favor of litigating in Korea, the district
court reasonably concluded that “the majority of both the documentary evidence and percipient
witnesses in this case is thousands of miles away in Korea,” and litigating “in New York under
such circumstances would be far from ‘easy, expeditious and inexpensive.’” Special App’x at 20
(quoting Iragorri, 274 F.3d at 73–74). Similarly, in reasonably determining that the public interest
factors also favored dismissal, the district court explained:
For one, New York has no local interest in deciding this case because this case has
almost no connection to New York. The underlying facts giving rise to the
plaintiffs’ litigation against Iran stem from overseas terrorist attacks, and their U.S.
judgments were entered in the District of Columbia. As alleged in the plaintiffs’
complaint, most of IBK’s conduct exposing it to liability occurred in Korea and
other foreign countries. Indeed, the primary connection between the facts of this
case and New York seems to be the allegation that IBK passed Iranian funds
through correspondent bank accounts in New York. But the coincidental
involvement of bank accounts in New York, a global financial hub, is not enough
to make this a New York controversy. . . .
Given the minimal connection between New York and the issues in this case, New
York has almost no interest in seeing it decided here, and it makes little sense to
burden a New York court and jury with it. Korea, by contrast, has a strong interest
in hearing this case, because it involves alleged misconduct by a government-
sponsored Korean bank that in large part occurred in Korea.
Id. at 20–22 (internal quotation marks and citation omitted). In addition, although “the need to
apply foreign law is not alone sufficient to dismiss under the doctrine of forum non conveniens,”
R. Maganlal & Co. v. M.G. Chem. Co., 942 F.2d 164, 169 (2d Cir. 1991), the district court was
entitled to consider the possibility that it would be required to apply Korean substantive law to
plaintiffs’ claims as an additional factor that weighed in favor of dismissal. See Piper, 454 U.S.
at 251.
Finally, in support of their position, plaintiffs point to the strong U.S. policy interest in,
among other things, “regulating the interaction between the U.S. and any Iranian assets and for
encouraging victims of terrorism to bring claims against state sponsors of terrorism and to collect
13
on judgments if they prevail” and, in essence, plaintiffs suggest that such policy interests mandate
that the district court allow their claims be litigated in the United States. Appellants’ Br. at 50.
We disagree with any suggestion that the nature of this lawsuit requires a departure from our legal
framework for a forum non conveniens analysis. Moreover, we emphasize that this lawsuit does
not involve claims against a state sponsor of terrorism nor are plaintiffs enforcing U.S. sanctions
laws. Although plaintiffs hold judgments against Iran for its support of the 1998 terrorist attacks
on the U.S. embassies in Kenya and Tanzania, Iran is not a party to this lawsuit. Instead, plaintiffs,
as judgment creditors, are suing a bank, which is majority-owned by the Korean government and
headquartered in Korea—for allegedly conspiring to fraudulently convey assets out of the Central
Bank of Iran’s account in Korea, through transactions initiated in Korea—seeking the turnover of
funds that continue to be located in Korea. We nevertheless recognize that, in their capacity as
judgment creditors, victims of terrorism and their families have a legitimate and compelling
interest in pursuing claims against IBK for its allegedly wrongful conduct that hindered their
ability to recover Iranian assets. However, their preference to litigate those claims in a U.S. court
is not the only consideration. Where an adequate alternative forum exists, our current forum non
conveniens framework is fully capable of balancing the interests articulated by plaintiffs with the
other important private and public considerations at issue. Here, under the deferential abuse of
discretion standard, we find no basis to disturb the district court’s determination, under the
particular facts of this case, that the private and public interests supported requiring plaintiffs to
litigate their claims in the Korean courts.
* * *
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In sum, we conclude that the district court did not abuse its discretion in conditionally
granting the motion to dismiss on the ground of forum non conveniens. 5
We have considered plaintiffs’ remaining arguments and conclude that they are without
merit. For the foregoing reasons, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
5
With respect to the conditional dismissal, plaintiffs argue that the district court erred in not imposing an
eighteen-month expiration date, such that plaintiffs could re-file the case in the Southern District of New
York if plaintiffs’ U.S. judgments against Iran were not recognized as valid and enforceable in Korea within
eighteen months of filing the lawsuit in Korea. We again conclude that the district court did not err in
rejecting that request because, among other things, it could lead to litigation gamesmanship in the Korean
forum and IBK “could be forced to litigate in an inconvenient foreign forum based entirely on factors
outside of its control.” Special App’x at 25.
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